Debra Waller v. Newton, City of - Law Department (SPR 20180497)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 27, 2018 SPR18/497 Jonah M. Temple, Esq. Assistant City Solicitor City of Newton Law Department 1000 Commonwealth A venue Newton Centre, MA 02459 Dear Attorney Temple: I have received the petition of Debra Waller appealing the response of the City of Newton (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Waller requested a copy of: All records regarding Building Permit No. 16110711 for the dates 6/1/2016-3/23/2017, including emails. The request includes: all records with reference to the issuance of the permit and with reference to the February 28, 2017 Zoning Board of Appeals hearing on the permit. The request for emails includes: all internal newtonma.gov emails and all emails between newtonma.gov and external parties. The request also includes: any discussions of fire safety, the legality of putting a commercial solar array in a residential neighborhood and why a special permit was not required. The City provided responsive records on April 18t\ April 21st, May Ii\ November 21st and November 30, 2017. Previous appeals The requested records were the subject of three previous appeals. See SPRl 7/674; SPRl 7 /1087 and SPRl 8/207 Determinations of the Supervisor of Records (Supervisor) (June 1, 2017; August 25, 2017 and March 1, 2018). Ms. Waller petitioned this office regarding the records she received in November 2017, contending that she was missing records that may be responsive to her requests. As a result, this office opened SPRl 8/207. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Jonah M. Temple, Esq. SPR18/497 Page 2 April 27, 2018 In my determination for SPR18/207, I ordered the City to provide Ms. Waller with a supplemental response to explain whether the City has provided all the records in its possession, custody, or control of the City at the time of the request; or a response that identifies requested records that are not in the City's possession; or for the City to claim a specific exemption or exemptions to withhold any requested records. The City provided a March 2, 2018 response, and Ms. Waller appealed the March 2nd response. The City's March 2, 2018 response The City's March 2nd supplemental response explained that the City does not possess the two (2) email attachments that Ms. Waller states as, "record/0Young/TCP03FO and the attachments she states are titled, 'Summary of Deed Restrictions.pdf and '1969.pdf."' In addition, the City indicated that it does not have possession of the "Request for Zoning Enforcement of Condition 30 of the Zoning Board of Appeals Order 4 70-04, signed by 18 complainants," which Ms. Waller filed with Inspectional Services in 2012. The City continues to claim that it provided all records that exist and are in its possession, reiterating its previous responses provided to Ms. Waller on February 9 and February 12, 2018. In your March 2nd response to my March 1st determination, you indicated that the City made its best efforts to respond to the requests, and all public records in the custody and control of the city that are responsive have been produced. In an April 26, 2018 telephone discussion with a Public Records Division attorney, you indicated that the City searched both its old email system and the current system, providing Ms. Waller with all the records in its possession, including attachments. The City's Chief Information Officer (CIO) searched for emails and attachments in both the old email system in which emails from individual archived email accounts from 2011 to 2013 were indexed and retrieved, and the email accounts in the email system for emails from 2014 through the date of Ms. Waller's request in order to satisfy her requests. During the April 26th conversation, you explained, as you had in your February 9th email to Ms. Waller, that the City had a limited ability to retrieve emails from the City's old email system and off-line system, and that many corruptions in the quality as to form and format of the text. You indicated that the ability to retrieve attachments from older emails was limited. You explained that you addressed these issues in a February 9th response sent to Ms. Waller. Your February 9th response stated, "in response to [Ms. Waller's] request for missing attachments, the City's CIO again searched Ms. Lougee's email, the Inspectional Services Department's drive, an internal database for all documents related to the hospital and the City website and spoke to Ms. Lougee. Despite these efforts, the missing attachments cannot be located and therefore are not in the custody or control of the City." Finally, in response to my March 1st determination pertaining to Ms. Waller's request for the "Request for Zoning Enforcement" Ms. Waller filed with Inspectional Services in 2012, you indicated that the City made another diligent search of archived records, the paper files in the

JonahM. Temple, Esq. SPR18/497 Page 3 April 27, 2018 Inspectional Services Department, including the file specific to Ms. Waller, and did not find the 2012 document. Under the Public Records Law, the Office is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d ). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). However, the fact that the City cannot locate a record that was in the custody of the Inspectional Services Department, may suggest that the City may need some assistance in records management. The City is advised that public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 289-90 (1979). I will a direct a copy of this letter to the Records Management Unit of this office (RMU). The RMU assists state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Accordingly, where the City has provided all the records in its possession, custody and control in response to Ms. Waller's 2017 requests, I consider this appeal closed. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Debra Waller Michael Comeau